Citation Nr: 0935693
Decision Date: 09/21/09 Archive Date: 10/02/09
DOCKET NO. 98-03 054A ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in North
Little Rock, Arkansas
THE ISSUES
1. Entitlement to service connection for a disability
manifested by headaches, to include as due to an undiagnosed
illness.
2. Entitlement to service connection for hypertension.
3. Entitlement to service connection for right atrial
enlargement.
REPRESENTATION
Appellant represented by: The American Legion
WITNESS AT HEARINGS ON APPEAL
Veteran
ATTORNEY FOR THE BOARD
David S. Nelson, Counsel
INTRODUCTION
The Veteran had active service from April 1984 until April
1992.
These matters come before the Board of Veterans' Appeals (BVA
or Board) from November 1997 and February 1999 rating
decisions of the Department of Veterans Affairs (VA),
Regional Office (RO) in Little Rock, Arkansas and St. Paul,
Minnesota, respectively. The claims file is currently at the
RO North Little Rock, Arkansas.
The Veteran's claims were most recently before the Board in
November 2005 and June 2007.
At the time of the June 2007 Board remand, the issues on
appeal included entitlement to service connection for a
disability manifested by depression, as well as entitlement
to service connection for posttraumatic stress disorder
(PTSD). By a rating decision in January 2009, service
connection was established for PTSD and depression, and a
rating of 100 percent has been assigned, effective January 9,
2003. As such, these matters no longer represent pending
appeals and are not for appellate consideration.
The issue of entitlement to service connection for right
atrial enlargement is addressed in the REMAND portion of the
decision below and is REMANDED to the RO via the Appeals
Management Center (AMC), in Washington, DC.
FINDINGS OF FACT
1. A VA neurologist has linked the Veteran's headaches to
her active service.
2. Hypertension was not shown in service or within a year of
discharge from service, and the competent medical evidence
fails to establish a nexus or link between hypertension and
the Veteran's active service.
CONCLUSIONS OF LAW
1. Headaches were incurred in active service. 38 U.S.C.A.
§§ 1101, 1110, 1112, 1113, 1131, 5107 (West 2002 & Supp.
2008); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2008).
2. Hypertension was not incurred in, or aggravated by,
active service, nor may it be presumed to have been so
incurred or aggravated. 38 U.S.C.A. §§ 1101, 1110, 1112,
1113, 1131, 5107 (West 2002 & Supp. 2008); 38 C.F.R.
§§ 3.303, 3.307, 3.309 (2008).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
VCAA
The Veterans Claims Assistance Act of 2000 (VCAA), in part,
describes VA's duties to notify and assist claimants in
substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100,
5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102,
3.156(a), 3.159, 3.326(a). The VCAA applies in the instant
case.
Duty to Notify
Upon receipt of a complete or substantially complete
application for benefits, VA is required to notify the
claimant and his or her representative, if any, of any
information, and any medical or lay evidence, that is
necessary to substantiate the claim. 38 U.S.C.A. § 5103(a);
38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App.
183 (2002). Proper VCAA notice must inform the claimant of
any information and evidence not of record (1) that is
necessary to substantiate the claim; (2) that VA will seek to
provide; and (3) that the claimant is expected to provide.
38 C.F.R. § 3.159(b)(1). VCAA notice should be provided to a
claimant before the initial unfavorable agency of original
jurisdiction decision on a claim. Pelegrini v. Principi, 18
Vet. App. 112 (2004).
The Board notes that 38 C.F.R. § 3.159 was revised, effective
May 30, 2008. See 73 Fed. Reg. 23353-56 (Apr. 30, 2008).
The amendments apply to applications for benefits pending
before VA on, or filed after, May 30, 2008. The amendments,
among other things, removed the notice provision requiring VA
to request the veteran to provide any evidence in the
veteran's possession that pertains to the claim. See 38
C.F.R. § 3.159(b)(1).
In light of the favorable decision to grant the Veteran's
claim of entitlement to service connection for headaches, any
deficiency as to VA's duties to notify and assist, pursuant
to the provisions of the VCAA, as to the headaches issue, is
rendered moot, and the following discussion of the VCAA
pertains to the Veteran's claim of entitlement to service
connection for hypertension.
By correspondence dated in May 2003 and July 2007 the Veteran
was informed of the evidence and information necessary to
substantiate the hypertension claim, the information required
of the appellant to enable VA to obtain evidence in support
of the claim, the assistance that VA would provide to obtain
evidence and information in support of the claim, and the
evidence that should be submitted if there was no desire for
VA to obtain such evidence. In the July 2007 letter the
Veteran received notice regarding the assignment of a
disability rating and/or effective date in the event of an
award of VA benefits. Dingess/Hartman v. Nicholson, 19 Vet.
App. 473 (2006). As VCAA notice was not completed prior to
the initial AOJ adjudication of the claim, such notice was
not compliant with Pelegrini. However, as the case was
readjudicated thereafter, there is no prejudice to the
Veteran in this regard. Prickett v. Nicholson, 20 Vet. App.
370, 376 (2006).
Duty to Assist
The claims file contains service treatment records which
appear to be incomplete. A review of the claims file reveals
that numerous research attempts have been conducted, and
further efforts would be futile. VA medical records are of
record. In February 2008 and August 2008 the Veteran
underwent VA examinations that addressed the medical matters
presented by this appeal. 38 C.F.R. § 3.159(c)(4); McLendon
v. Nicholson, 20 Vet. App. 79 (2006). When VA undertakes to
provide a VA examination or obtain a VA opinion, it must
ensure that the examination or opinion is adequate. Barr v.
Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds
that the VA opinions obtained in this case are more than
adequate. The opinions considered the pertinent evidence of
record, and included specific references to the Veteran's
available service treatment records. Accordingly, the Board
finds that VA's duty to assist with respect to obtaining a VA
examination or opinion with respect to the issues on appeal
has been met. 38 C.F.R. § 3.159(c) (4).
The Veteran has not referenced any other pertinent,
obtainable evidence that remains outstanding. VA's duties to
notify and assist are met, and the Board will address the
merits of the claims.
Service connection is warranted if it is shown that a veteran
has a disability resulting from an injury incurred or a
disease contracted in active service, or for aggravation of a
preexisting injury or disease in active military service. 38
U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service
connection may be granted for any disease diagnosed after
discharge, when all the evidence, including that pertinent to
service, establishes that the disease was incurred in
service. 38 C.F.R. § 3.303(d).
Service connection for hypertension may be presumed, subject
to rebuttal, if manifest to a compensable degree within the
year after active service. 38 U.S.C.A. §§ 1101, 1112, 1113,
1137; 38 C.F.R. § 3.307, 3.309.
If there is no evidence of a chronic condition during
service, or during an applicable presumptive period, then a
showing of continuity of symptomatology after service is
required to support the claim. See 38 C.F.R. § 3.303(b).
Evidence of a chronic condition must be medical, unless it
relates to a condition to which lay observation is competent.
See Savage v. Gober, 10 Vet. App. 488, 495-498 (1997).
In each case where a veteran is seeking service connection
for any disability, due consideration shall be given to the
places, types, and circumstances of such veteran's service as
shown by such veteran's service record, the official history
of each organization in which such veteran served, such
veteran's medical records, and all pertinent medical and lay
evidence. 38 U.S.C.A. § 1154(a) (West 2002).
I. Headaches
The available service treatment records reveal no complaints
or findings of headaches.
In an August 1994 VA social worker's note, the Veteran
indicated that she had had headaches in the military "for
years." An October 1994 VA neurological examination report
revealed that the Veteran stated that she had had headaches
since 1985 soon after basic training. The impression was
migraine headaches.
In accordance with the directions provided in the June 2007
Board remand, in February 2008, the Veteran underwent a VA
neurology examination for the purpose of determining whether
her complaints of headaches were related to her active
service. The impression was chronic headaches. The February
2008 examiner, a VA neurologist, concluded the examination
report by stating that it was likely that the Veteran's
headaches were related to her active service (in particular,
to an inservice fall that occurred during military training
as described by the Veteran in a statement received in
December 1995).
The Board finds that the February 2008 VA examiner's opinion
is of high probative value in this case. The February 2008
VA examiner elicited information concerning the Veteran's
military service, considered the pertinent evidence of
record, and performed a contemporaneous examination. In
addition to linking the Veteran's headaches to her asserted
inservice fall, it also appears the examiner essentially
noted a continuity of her headaches symptoms during and
subsequent to service. Such reasoning appears to comport
with the many statements made by the Veteran in 1994 and
thereafter wherein she indicated that she had had problems
with headaches during service. In this regard, the Board
again notes that in an August 1994 VA social workers note the
Veteran stated that she had had headaches for years. The
Board finds that the Veteran's statement in this regard is
credible as she is competent to report experiencing head
pain, and her statement was not made in conjunction with
pursuing treatment for her headaches, but while discussing
primarily family and personal matters.
With resolution of doubt in the Veteran's favor, the Board
finds that competent clinical evidence of record, and the
Veteran's credible lay statements, support service connection
for headaches.
II. Hypertension
The Veteran's March 1984 service enlistment examination
report indicates that the Veteran's heart was clinically
evaluated as normal; blood pressure was recorded as 118/72.
Service treatment records associated with the Veteran's tubal
ligation reveal blood pressure readings no higher than
120/80.
At a July 1994 VA (Persian Gulf ) examination, the Veteran's
heart was evaluated as normal; blood pressure was recorded as
134/82. An August 1994 VA examination noted no
cardiovascular disability; blood pressure was recorded as
120/80.
A September 1995 VA record recorded blood pressure as 140/86,
and an October 1995 VA record recorded blood pressure as
140/82. An April 1996 VA record noted a diagnosis of
hypertension, the earliest such diagnosis in the claims file.
In accordance with the directions provided in the Board's
June 2007 Board remand, in February 2008 the Veteran
underwent a VA hypertension examination for the purpose of
determining whether hypertension was present during service
or otherwise related to service. After eliciting information
concerning the Veteran's military service, considering the
pertinent evidence of record (including referencing the
Veteran's available serve medical records, and performing a
contemporaneous examination, the February 2008 VA examiner
stated that the Veteran's hypertension probably began in late
1995, and thus concluded that the Veteran's hypertension had
its onset a few years following the Veteran's separation from
service.
The Board observes that hypertension was not noted in service
or within the first year of discharge from service, and there
is no objective evidence of hypertension until 1995 (at the
earliest), some three years subsequent to service. Further,
there is no competent medical opinion linking hypertension to
service. In fact, the VA examiner who performed the February
2008 VA hypertension examination (and the August 2008 VA
heart examiner, as well) essentially opined that hypertension
was not likely related to the Veteran's military service.
The Board acknowledges that an October 2003 VA examiner
indicated that the Veteran's hypertension started during
service. The Board notes, however, that in a March 2004
addendum, and based upon a more detailed review of the
record, the October 2003 VA examiner indicated that there was
no evidence that the Veteran's hypertension had begun during
her military service.
The Board notes that the Veteran is competent to provide
testimony concerning factual matters of which she has first
hand knowledge, and, under certain circumstances, lay
statements may serve to support a claim for service
connection by supporting the occurrence of lay-observable
events or the presence of disability, or symptoms of
disability, susceptible of lay observation. Jandreau v.
Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). However, as a
layperson, the Veteran simply does not have the necessary
medical training and/or expertise to determine the onset of
her hypertension. See Espiritu v. Derwinski, 2 Vet. App.
492, 494 (1992).
As noted, the Veteran's complete service treatment records
are not associated with the claims file. While the Board is
cognizant of the heightened duty to explain its findings and
conclusions and to consider carefully the benefit-of-the-
doubt rule (O'Hare v. Derwinski, 1 Vet. App. 365, 367
(1991)), the Veteran still has the burden to establish this
claim by competent clinical evidence which is at least in
equipoise. Here, the Board again notes that competent
clinical findings subsequent to service revealed normal blood
pressure readings. Further, the Board also observes that the
Veteran did not assert at her June 1999 Board hearing (June
1999 Board hearing transcript, page 36) that she had been
treated for hypertension during service.
In reaching this conclusion, the Board has considered the
applicability of the benefit-of-the-doubt doctrine, and has
resolved doubt in the Veteran's favor in granting service
connection for headaches. 38 U.S.C.A. § 5107(b); 38 C.F.R.
§ 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).
ORDER
Entitlement to service connection for headaches is granted.
Entitlement to service connection for hypertension is denied.
REMAND
The February 1999 rating decision on appeal denied
entitlement to service connection for right atrial
enlargement, and the issue was last addressed (in a
substantive manner) by VA in the remand portion of a November
2005 Board decision and remand (the Board observes that the
June 2007 Board remand noted that the issue was undergoing
additional development).
The November 2005 Board decision contained the following:
Regarding the right atrial enlargement
claim, the veteran had a VA examination
in October 2003. Although that
examination showed a normal size heart,
the examiner stated that he had ordered
an echocardiogram to determine if there
indeed was any right atrial enlargement.
Such study is not associated with the
claims file, nor were the results of that
test otherwise indicated in the record.
As such, that echocardiogram should be
located and added to the record.
The November 2005 Board remand required that the RO complete
the following:
Contact the VA Medical Center in North
Little Rock, Arkansas, and request a copy
of an echocardiogram performed on or
around October 2003. If no such document
can be found, then the veteran should be
scheduled for such a study. If the
results of such study reveal right atrial
enlargement, then a VA examiner should
provide an opinion as to whether such
condition is at least as likely as not
related to active service. In rendering
such an opinion, the entire claims file
should be reviewed. The examiner should
also comment as to whether such right
atrial enlargement is attributable to a
known clinical diagnosis. All opinions
should be accompanied by a clear
rationale supported by the evidence of
record.
While the October 2003 echocardiogram is not associated with
the claims file, the RO did schedule the Veteran for an
echocardiogram that was completed in May 2008, and that study
is associated with the claims file.
The Board notes that it appears the RO has completed the
development requested in the November 2005 remand. However,
as pertinent evidence has been added to the claims file since
the November 2005 Board remand (as well as since the June
2004 supplemental statement of the case, the last
adjudication on the merits by VA), the issue must be remanded
to the AOJ for review and consideration. Disabled American
Veterans (DAV) v. Secretary of Veterans Affairs, 327 F. 3d
1339 (Fed. Cir. 2003); 38 C.F.R. §§ 19.37(b), 20.1304(a)
(2008).
Accordingly, the case is REMANDED for the following:
The AOJ must readjudicate the issue of
entitlement to service connection for
right atrial enlargement with
consideration of the additional evidence
received since the most recent
supplemental statement of the case in
June 2004 which addressed the matter. If
the benefit sought is not granted to the
Veteran's satisfaction, a supplemental
statement of the case should be issued,
and the Veteran and her representative
should be afforded the appropriate period
to respond. Thereafter, the case should
be returned to the Board, as appropriate.
The appellant has the right to submit additional evidence and
argument on the matter the Board has remanded. Kutscherousky
v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2005).
______________________________________________
U. R. POWELL
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs